People v. Maldonado

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People v. Maldonado

State: Illinois

Court: 2nd District Appellate

Docket No: 2-07-0015, 2-07-0016, 2-07-0017, 2-07

Case Date: 10/28/2008

Preview:Nos. 2--07--0015, 2--07--0016, 2--07--0017 & 2--07--0058 cons. Filed: 10-28-08 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Boone County. ) Plaintiff-Appellee, ) ) No. 06--CF--61 v. ) ) ANTONIO MALDONADO, ) Honorable ) R. Craig Sahlstrom, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Boone County. ) Plaintiff-Appellee, ) ) No. 06--CF--113 v. ) ) JOSE VASQUEZ, ) Honorable ) John R. Truitt, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Boone County. ) Plaintiff-Appellee, ) ) No. 06--CF--111 v. ) ) VICTORINO P. MONGUE, ) Honorable ) John R. Truitt, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

Nos. 2--07--0015, 2--07--0016, 2--07--0017 & 2--07--0058 cons.

THE PEOPLE OF THE STATE OF ILLINOIS,

) Appeal from the Circuit Court ) of Boone County. ) Plaintiff-Appellee, ) ) No. 06--CF--433 v. ) ) MARCELINO ROMERO-FLORES, ) Honorable ) John R. Truitt, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________ JUSTICE SCHOSTOK delivered the opinion of the court: The defendants, Antonio Maldonado, Jose Vasquez, Victorino Mongue, and Marcelino Romero-Flores, were convicted of aggravated driving under the influence (DUI) (625 ILCS 5/11--501(d)(1)(G) (West 2006)) for driving while intoxicated and while not licensed to drive by this state. The defendants were sentenced to probation and ordered to pay certain fines. On appeal, the defendants argue that section 11--501(d)(1)(G) of the Illinois Vehicle Code (the Vehicle Code) (625 ILCS 5/11--501(d)(1)(G) (West 2006)) was not in effect at the time of their offenses. Accordingly, they request that their convictions be reduced to DUI and that their cases be remanded for new sentencing hearings. Alternatively, the defendants argue that they are entitled to monetary credit against their fines for time spent in custody prior to sentencing. We affirm and remand with directions. On March 17, 2006, Maldonado was charged by indictment with two counts of aggravated DUI (625 ILCS 5/11--501(d)(1)(G) (West 2006)). On April 16, 2006, Mongue and Vasquez were charged in separate, unrelated indictments with two counts of aggravated DUI as defined in section 11--501(d)(1)(G), and two counts of aggravated DUI as defined in section 11--501(d)(1)(H) (625

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Nos. 2--07--0015, 2--07--0016, 2--07--0017 & 2--07--0058 cons. ILCS 5/11--501(d)(1)(G), (d)(1)(H) (West 2006)). On November 3, 2006, Romero-Flores was indicted on two counts of aggravated DUI (625 ILCS 5/11--501(d)(1)(G) (West 2006)). All four defendants were represented by the same trial counsel. Each defendant filed a pretrial motion to declare section 11--501(d)(1)(G) of the Vehicle Code (625 ILCS 5/11--501(d)(1)(G) (West 2006)) unconstitutional. All of the motions were denied. Each of the defendants' cases eventually proceeded to a stipulated bench trial. In each case, the parties stipulated to the foundation and admissibility of the evidence, but did not stipulate whether the evidence was sufficient to convict. The evidence included police reports and Breathalyzer test results as to each defendant. As to Maldonado, Vasquez, and Mongue, the stipulated evidence also included driver's abstracts showing that they did not possess driver's licenses. Finally, in each case, the State proceeded on only one count of aggravated DUI (625 ILCS 5/11--501(d)(1)(G) (West 2006)) and dismissed the additional counts. The police reports indicated as follows. On February 25, 2006, the police stopped the car Maldonado was driving, because a registration check showed the registered owner to have a suspended driver's license. Maldonado was not the owner of the car. Maldonado admitted that he had been drinking, he failed multiple field sobriety tests, and a Breathalyzer test showed his blood alcohol concentration (BAC) to be 0.238. On March 7, 2006, the police pulled Mongue over after observing him commit several traffic violations. Mongue admitted that he had been drinking, and a Breathalyzer test showed his BAC to be 0.125. On March 26, 2006, Vasquez was pulled over after a police officer saw Vasquez's car straddling the double yellow lines in the center of the road. Vasquez admitted that he had been drinking, and a Breathalyzer test revealed his BAC to be 0.239. On August 19, 2006, Romero-Flores was pulled over for improper lane usage. The officer

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Nos. 2--07--0015, 2--07--0016, 2--07--0017 & 2--07--0058 cons. determined that Romero-Flores did not have a driver's license and that he was too intoxicated to perform field sobriety tests. Romero-Flores agreed to submit to a Breathalyzer test, which showed his BAC to be 0.184. None of the defendants were licensed to drive. After reviewing the stipulations, police reports, and Breathalyzer test results, the trial court found each of the defendants guilty of aggravated DUI (625 ILCS 5/11--501(d)(1)(G) (West 2006)). The trial court sentenced Maldonado, Vasquez, and Mongue to 18 months' conditional discharge with stayed jail time and imposed fines of $400 along with various other fines, costs, and fees. The trial court sentenced Romero-Flores to 12 months' probation with stayed jail time and imposed a $600 fine, as well as other fines, costs, and fees. Each of the defendants filed a timely notice of appeal. On March 20, 2008, the defendants filed a motion to consolidate their appeals. On March 31, 2008, this court granted that motion. The defendants' first contention on appeal is that they were charged and convicted under a subsection of section 11--501 of the Vehicle Code that never took effect. The defendants acknowledge that Public Act 94--329, passed May 18, 2005, and effective January 1, 2006, amended section 11--501(d)(1), in part, by adding an additional subsection, (d)(1)(G), which elevated the offense of DUI, a Class A misdemeanor, to aggravated DUI, a Class 4 felony, where the violation was committed while the driver did not possess a driver's license. The defendants argue, however, that Public Act 94--609, passed May 20, 2005, and effective January 1, 2006, deleted section (d)(1)(G) added by Public Act 94--329, so that the defendants' offenses were once again classified as DUI, a Class A misdemeanor. The defendants argue that Public Act 94--609 controlled at the time of the offenses of Mongue, Maldonado, and Vasquez. The defendants further argue that Public Act 94--963, passed April 25, 2006, and effective June 28, 2006, also did not include the language

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Nos. 2--07--0015, 2--07--0016, 2--07--0017 & 2--07--0058 cons. added by Public Act 94--329 and that this act controlled at the time of Romero-Flores's offense. Finally, the defendants argue that all the amendments to the Vehicle Code made by the 94th General Assembly, contained in Public Acts 94--110, 94--113, 94--114, 94--116, 94--329, 94--609, and 94--963, irreconcilably conflict, rendering impossible a cohesive reading of all seven acts. At the outset we note that the defendants are asserting their claim, that section 11--501(d)(1)(G) of the Vehicle Code did not exist at the time of their offenses, for the first time on appeal. Generally, claims raised for the first time on appeal are deemed to be forfeited. People v. Williams, 267 Ill. App. 3d 82, 91 (1994); see also People v. Hauschild, 226 Ill. 2d 63, 73 n.1 (2007) (although courts often use "forfeit" and "waive" interchangeably, the term "forfeit" applies to issues that could have been raised, but were not, and are therefore barred). However, we may review the defendants' contention for plain error, as sentencing a defendant under a nonexistent law would obviously violate his substantial rights. See 134 Ill. 2d R. 615(a) (plain errors affecting substantial rights may be noticed on appeal even though they were not brought to the attention of the trial court); People v. Kitchen, 159 Ill. 2d 1, 42-43 (1994) (plain error may be invoked in criminal cases where the plain error affected substantial rights). Moreover, a conviction or sentence that does not conform to statutory requirements is void (People v. Madej, 193 Ill. 2d 395, 401 (2000)), and challenges to void judgments may be raised at any time (People v. Balle, 379 Ill. App. 3d 146, 151 (2008)). Issues of statutory construction present questions of law that we review de novo. O'Casek v. Children's Home & Aid Society of Illinois, 229 Ill. 2d 421, 436 (2008). As in all cases of statutory construction, our primary objective is to ascertain and give effect to the intent of the legislature. O'Casek, 229 Ill. 2d at 436. "Statutes are to be construed as they were intended to be construed when

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Nos. 2--07--0015, 2--07--0016, 2--07--0017 & 2--07--0058 cons. they were passed." People v. Boreman, 401 Ill. 566, 572 (1948). Section 6 of the Statute on Statutes states in pertinent part: "Two or more Acts which relate to [the] same subject matter and which are enacted by the same General Assembly shall be construed together in such manner as to give full effect to each Act except in case of an irreconcilable conflict. In case of an irreconcilable conflict the Act last acted upon by the General Assembly is controlling to the extent of such conflict. *** An irreconcilable conflict between [two] or more Acts which amend the same section of an Act exists only if the amendatory Acts make inconsistent changes in the section as it theretofore existed." 5 ILCS 70/6 (West 2006). The general rule is that, when an act is amended so as to read as it is repeated in the amendatory act, portions of the old law not repeated are deemed repealed. People v. Caraballo, 231 Ill. App. 3d 685, 687 (1992). "However, courts will strive to find harmony between legislative acts so as to give effect to the legislature's intent. For example, our supreme court has stated that, '[i]f the two enactments are capable of being construed so that both may stand, the court should so construe them.' " Caraballo, 231 Ill. App. 3d at 687-88, quoting People v. Ullrich, 135 Ill. 2d 477, 483 (1990). Furthermore, when we determine the intent of the legislature as to a particular act or amendment, we are not confined to its literal language, but may consider its history and subsequent amendments. Caraballo, 231 Ill. App. 3d at 688. As stated by our supreme court: "When confronted with problems arising when two or more bills are passed at the same session of the legislature, each pertaining to the same subject or amending the same

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Nos. 2--07--0015, 2--07--0016, 2--07--0017 & 2--07--0058 cons. statute, the primary question, as in all cases of statutory construction, is the intent of the legislature, rather than the technical priority of the passage of the acts. [Citation.] The whole record of the legislature, including acts passed at subsequent sessions, is open to ascertain such intent, and, once ascertained, it will be given effect irrespective of priority of enactment. [Citations.] For a later enactment to operate as a repeal by implication of an earlier one there must be such total and manifest repugnance that the two cannot stand together. [Citations.] On the other hand, if the two enactments are capable of being construed so that both may stand, it is the duty of this court to so construe them. [Citations.] *** *** And, in the absence of a clear legislative intent to the contrary and where two acts are not so inconsistent that both cannot stand and be given effect, a later law which is merely a re-enactment of a former law does not repeal an intermediate act which has qualified or limited the first one, but the intermediate act will be deemed to remain in force and to qualify or modify the new act in the same manner as it did the first. [Citations.]" People ex rel. Dickey v. Southern Ry. Co., 17 Ill. 2d 550, 554-56 (1959). In Dickey, at issue were two 1957 amendments to section 17--2 of the Illinois School Code (then Ill. Rev. Stat. 1955, ch. 122, par. 17--2, now 105 ILCS 5/17--2 (West 2006)). The first amendment, among other things, amended section 17--2 by adding section 17--2(3), which addressed the annual tax a school board could levy, for building and educational purposes, in districts maintaining grades 1 to 12, and section 17--2(4), which granted school districts the authority to levy transportation taxes if they provided transportation for pupils. Dickey, 17 Ill. 2d at 552. All the

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Nos. 2--07--0015, 2--07--0016, 2--07--0017 & 2--07--0058 cons. other additions or changes accomplished by the amendment related to the transportation of school children or the transportation fund. Dickey, 17 Ill. 2d at 552-53. The second amendment, which was passed six days later, also, among other things, amended section 17--2 of the School Code. Dickey, 17 Ill. 2d at 553. It amended sections 17--2(1) and 17--2(3) to increase the rates at which school districts could levy taxes for educational and building purposes. Dickey, 17 Ill. 2d at 553. However, the second amendment omitted section 17--2(4), which had been added by the first amendment and had addressed the transportation tax. Dickey, 17 Ill. 2d at 553. The question presented, therefore, was whether the second amendment had implicitly repealed the school district's authority to levy a transportation tax, section 17--2(4). The defendant argued that the two amendments were inconsistent and that the second amendment, being the last expression of the legislature, must prevail. Dickey, 17 Ill. 2d at 554. The Dickey court determined that the two amendments were intended to make separate and distinct changes in section 17--2 and that both could be given effect without inconsistency. Dickey, 17 Ill. 2d at 555. The court determined that the purpose of the first amendment was to create a transportation fund for school districts. Dickey, 17 Ill. 2d at 555. The purpose of the second amendment was to adjust educational and building tax rates for certain districts. Dickey, 17 Ill. 2d at 556. The court determined that the purpose of the second amendment was neither antagonistic nor repugnant to the purpose of the first amendment. Dickey, 17 Ill. 2d at 556. "This being the case neither amendment can be said to thwart the other and both may be given effect." Dickey, 17 Ill. 2d at 556. Our supreme court recently addressed a similar issue of statutory construction in O'Casek. The question in O'Casek was what version of section 2--622(a)(2) of the Code of Civil Procedure

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Nos. 2--07--0015, 2--07--0016, 2--07--0017 & 2--07--0058 cons. (the Code) was in effect at the time the plaintiff filed her medical malpractice complaint. Before 1995, section 2--622 of the Code provided that a plaintiff, or the plaintiff's attorney, was required to attach to a medical malpractice complaint either (1) an affidavit, with a physician's report attached, verifying that there was a reasonable and meritorious basis for the filing of the action; or (2) an affidavit that the affiant was unable to consult with a physician prior to filing the complaint, because a statute of limitations would have impaired the action. In the second instance, section 2--622 indicated that the plaintiff would have an additional 90 days to file a certificate of merit and the physician's report. See 735 ILCS 5/2--622 (West 1994); O'Casek, 229 Ill. 2d at 425. The Civil Justice Reform Amendments of 1995 (Pub. Act 89--7, eff. March 9, 1995) amended section 2--622, in part, to add another requirement to the affidavit, namely, verification that the plaintiff had not previously voluntarily dismissed the action. In other words, under Public Act 89--7, a plaintiff was precluded from obtaining a 90-day extension to file a certificate of merit if the plaintiff previously voluntarily dismissed the same or substantially the same cause of action. O'Casek, 229 Ill. 2d at 426. On December 18, 1997, the supreme court held Public Act 89--7 void in its entirety. O'Casek, 229 Ill. 2d at 426, citing Best v. Taylor Machine Works, 179 Ill. 2d 367, 467 (1997). "The amendments made to section 2--622 were not among the core provisions held substantively unconstitutional, but were nonetheless deemed invalid because the core provisions could not be severed from the balance of the Act." O'Casek, 229 Ill. 2d at 426. Thus, after the decision in Best, section 2--622 reverted to the pre-1995 version of the statute. O'Casek, 229 Ill. 2d at 426. The Best court noted, however, that the General Assembly was "free to reenact whatever provisions it deem[ed] desirable or appropriate." Best, 179 Ill. 2d at 471. The O'Casek court further explained:

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Nos. 2--07--0015, 2--07--0016, 2--07--0017 & 2--07--0058 cons. "On February 4, 1998, less than two months after our decision in Best, the General Assembly passed Public Act 90--579. Effective May 1, 1998, Public Act 90--579 amended section 2--622(a)(1) by adding naprapaths to the list of covered health professionals. Notably, however, Public Act 90--579 did not add naprapaths to the pre-1995 version of section 2--622 that was in effect after Best. Rather, it added naprapaths to the 1995 version struck down in Best." O'Casek, 229 Ill. 2d at 426. In O'Casek, the plaintiff filed an amended medical malpractice complaint on August 30, 2002. Attached to the amended complaint was an affidavit provided by plaintiff's attorney stating that he had been unable to obtain a consultation with a health professional before the expiration of the statute of limitations, but that the required certificate and report would be filed within 90 days. O'Casek, 229 Ill. 2d at 426. After failing to timely file the certificate and report, the defendants filed a motion to dismiss. The plaintiff responded by filing a motion to voluntarily dismiss, which the trial court granted. O'Casek, 229 Ill. 2d at 433. One year later, the plaintiff refiled her cause of action. Attached to the refiled complaint was an affidavit from the plaintiff's counsel stating that he had been unable to obtain a consultation with a health professional and that the required certificate and report would be filed within 90 days. O'Casek, 229 Ill. 2d at 433. The plaintiff's attorney subsequently filed a certificate of merit and a physician's report within the 90 days. O'Casek, 229 Ill. 2d at 433. The O'Casek defendants filed a motion to dismiss the plaintiff's complaint for failing to comply with section 2--622 of the Code. Specifically, the defendants argued that Public Act 90--579 reenacted the version of section 2--622 that was struck down in Best and that, based on that version of the statute, the plaintiff's attorney was not entitled to a 90-day extension to file the certificate of merit and physician's report, because the plaintiff had previously voluntarily dismissed the -10-

Nos. 2--07--0015, 2--07--0016, 2--07--0017 & 2--07--0058 cons. complaint. O'Casek, 229 Ill. 2d at 434. The trial court granted the defendants' dismissal motion. O'Casek, 229 Ill. 2d at 434. On appeal, the appellate court reversed. O'Casek, 229 Ill. 2d at 435. The appellate court determined that Public Act 90--579 did not reenact the provisions of section 2--622 struck down in Best. Accordingly, the appellate court determined that the pre-1995 version controlled, which allowed the plaintiff a 90-day extension to file the certificate of merit and physician's report regardless of whether the plaintiff had previously taken a voluntary dismissal. O'Casek, 229 Ill. 2d at 435. Our supreme court affirmed the appellate court. O'Casek, 229 Ill. 2d at 436. The supreme court determined that this was essentially an issue of statutory construction and stated that " '[s]tatutes are to be construed as they were intended to be construed when they were passed.' " O'Casek, 229 Ill. 2d at 441, quoting Boreman, 401 Ill. at 572. The O'Casek court determined that the legislature did not intend for Public Act 90--579 to reenact the provisions of section 2--622 struck down in Best. O'Casek, 229 Ill. 2d at 447. In determining what the legislature intended, the O'Casek court found two items significant. First, the O'Casek court explained that the General Assembly Operations Act (25 ILCS 10/10(f) (West 2004)), the Statute on Statues (5 ILCS 70/5 (West 2004)), and the Illinois House and Senate rules (95th Ill. Gen. Assem. House R. 37(e), Senate R. 5--1(e); 90th Ill. Gen. Assem. House R. 37(e), Senate R. 5--1(e)) all indicated that, in an amendatory act, new matter was to be either underscored or printed in italics and deleted matter was to be shown with a crossed line. O'Casek, 229 Ill. 2d at 445. The O'Casek court held that, "[b]ecause the Illinois Constitution requires that a 'bill expressly amending a law shall set forth completely the sections amended' (Ill. Const. 1970, art. IV,

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